Brakes need to be put on the NSA
Judge Richard J. Leon, of the U.S. District Court for the District of Columbia, won't have the final say on the constitutionality of the National Security Agency's data collection. That will go to the Supreme Court. But, so far, he has had the most emphatic word. In a decision issued Monday, Judge Leon said that James Madison would be "aghast" at the unconstitutional reach of the NSA into private information, and he described the agency's collection technology as "near-Orwellian."
The problem is that Judge Leon appears to be in the minority. He is the first judge not sitting on the Foreign Intelligence Surveillance Court, which first authorized and then upheld the program, to review the program. According to the Justice Department, which defended the case before Judge Leon, 15 FISA court judges have found the program to be constitutional.
Regardless of the ultimate outcome, Judge Leon raised valid points that should be considered by lawmakers who are pondering changes to the NSA's authority.
First is that the administration based its defense of the NSA program on a 1979 case, Smith v. Maryland, in which the Supreme Court found that there is no Fourth Amendment protections for "metadata" - phone records held by a phone company, while there is such protection for the content of calls.
Modern law regarding communications, the judge said, can't be rooted in a 34-year-old decision to the vastly different technology in play.
Second is the need for a more valid judicial process for the FISA court. Judges there hear arguments only from the government, a situation 180 degrees from the adversarial process in conventional courts. Because of that, those judges' findings opposite Judge Leon's are not surprising.
Congress should improve the process even as Judge Leon's decision is appealed.